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Judgment
B.L. Bansaria, J.—A suit was filed in 1977 against the predecessor-in-interest of the Petitioners for eviction from the suit premises and for realisation of arrear rent and compensation amounting to Rs. 2,330.00. The case of the landlord was that the tenant had defaulted in paying rent which was Rs. 70.00 per month and had refused to vacate the premises though the same were needed bona fide by the Plaintiff for his own use and for reconstruction. On failure of the tenant to vacate the premises and to pay arrear rent, a notice was issued terminating the tenancy and demanding re-possessior of the premises. On the failure of the tenant to comply with the requirement of the notice, the present suit was filed. The Defendant denied the averments of the Plaintiff and took a plea that legally valid notice of ejectment was not served on him. A point was also taken that the provisions of the Assam Urban Areas Rent Control Act were not applicable to the city of Guwahati wherein the suit property his situate. On the pleading of the parties as many as 9 Issues were framed. The learned trial Court decided the issues relating to bonafide requirement of the house for own use and occupation of the Plaintiff and for reconstruction against the suitor. The point relating to service of a valid notice terminating the tenancy was also decided against the Plaintiff. This was the subject matter of Issue No. 5. The learned trial Court went into the question of validity of notice despite the decision of the Supreme Court in Dhanapal AIR 1179 SC 1745, because Issue No. 9 "Whether the Urban Areas Rent Control Act is applicable in the area where suit land is situated" as well came to be decided against the Plaintiff. The learned trial Court denied the relief of ejactment in view of its decision relating to Issue No. 5. The Defendant was, however, found a defaulter and the Plaintiff''s suit for arrear of rent amounting to Rs. 2,100.00 was therefore decreed.
As the suit or ejectment had been dismissed by the learned trial Court because of its decision on Issue No. 5 which is connected with Issue No. 9, an appeal was preferred by the landlord by challenging the findings of the learned trial Court on Issues No. 5 and 9. In the impugned judgment, the learned Assistant District Judge has held that the provisions of the Assam Urban Areas Rent Control Act are applicable to the areas under the Gauhati Municipal Corporation. In coming to this decision reliance has been placed on the judgment of this Court in Kamala Dutta v. Ranendra Dutta 1983 (2) GLR 490. So, notice of termination of tenancy was not required, observed the learned Appellate Court. It was therefore held that the Plaintiff was entitled to get a decree for ejectment as prayed for. Feeling aggrieved, the tenant has preferred this revision.
In support of this revision, only one submission has been advanced by Shri Barua. His contention is that as the appeal before the learned Assistant District Judge was confined to Issues No. 5 and 9, the finding of the learned trial Court that the premises were not needed bonafide by the landlord for his own use and occupation, so also for reconstruction, has remained unchallenged; and this being the position, the landlord is not entitled to a decree for ejectment inasmuch as according to the learned Counsel ejectment had been sought only on the ground that the premises were needed by the landlord for his own use and occupation or for reconstruction, and not on the ground of default in paying rent.
To substantiate this submission, Shri Barua has drawn my attention to certain averments made in the plaint as well in Exhibit-2 by which khas possession of the premises was demanded on behalf of the landlord. In para 1 of the plaint, it has been stated that while taking the room on lease it was agreed that if the Plaintiff would need the same, the Defendant would hand over its possession. This would show that there was no agreement to vacate the premises in case the tenant was to default in paying rent. The second para of the plaint (sic) by saying that the Defendant defaulted in paying rent from March 1975 and on many demands being made by the Plaintiff rent was not paid. It is then stated that the house also needed for reconstruction. The next averment is that this reason the Plaintiff asked the Defendant to vacate the premises and to pay the arrear rent whereupon the Defendant verbally assured that be would pay arrear rent and vacate the premises. In Exhibit-2 it has been stated that when the premises bad been let out, it was agreed that in case of need the landlord, possession of the room would be given upper further relevant statements in Exbibit-2 are that no rent was by the tenant from March 1975; the room not being fit occupation, the landlord bad asked the tenant to vacate the (sic) when it was assured that that would be done within a (sic), but the tenant neither paid the rent nor vacated the room.
Relying on these averments, it has been contended by Barua that there was neither any agreement to vacate the premises in case of default in paying rent, not did the Plaintiff landlord really ask for khas possession of the shop due to suit in paying rent. This contention of Shri Barua has been challenged by Shri Lahiri. I would, however, think that on the (sic)uage as used in the plaint and Exhibit-2, whose crux has been noted above, the submission of Shri Barua is also tenable according to me, if two views are reasonably possible on the petition under examination, one favouring the tenant has to be copied. This is on the ground that leaning in favour of the tenant in such a situation would be in tune and harmony with enactment of rent control legislations throughout the length breadth of the country to protect the interest of the tenants to restrict the rights of the landlord.
Shri Barua has invited my attention to Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, also, wherein a Rent tribunal has been asked to bear in mind the human pro(sic) which is faced by a tenant when the effect of an order of petition is to throw him on the street. Shri Barua states (sic) if the poor tenant at hand is evicted from the soup premises (sic) is situate in Fancy Bazar, the commercial nerve centre Gauhati, the same would terribly affect his livelihood.
I have duly considered the aforesaid submissions of Shri faruah. The plea of the landlord that the shop in question was (sic)ed bona fide for his own use and occupation and for reconstruction was not accepted, by the learned trial Court which deciding was not assailed in the appeal. And, as I would accept (sic) contention of Shri Barua, for the reasons given above, that session of the premises was not demanded due to default paying rent, I am satisfied that the decree for eviction could have been passed. The passing of the eviction decree in instant case was really beyond the jurisdiction of the learned appellate Court for the reason that in view of the provisions pained in the Assam Urban Areas Rent Control Act, 1972 (sic) learned Court below lacked jurisdiction to pass decree for action because (1) Clause (c) of the proviso to Section 5 of aforesaid Act was not available on account of the finding bona fide requirement against the Plaintiff, and (2) clause was not pressed into service. Other Clauses of the provisions (sic) apparently no application.
In this view of the matter, I am satisfied that the present is a fit case which marits interference by this Court in (sic)cise of its power even u/s 115 CPC as there is a jurisdictional error in passing the impugned decree. The petition is, therefore, allowed and the decree for ejectment is aside. The decree for arrear of rent, however, stands disturbed.
The point for consideration is whether the tenant could be denied the protection of the Assam Urban Areas rent Control Act, hereinafter the Act, on the ground that he did not paid rent to the full extent allowable under the Act, and if so, what is the effect of the same in the present case Shri Lahiri has referred to Section 5(1) of the Act in this connection, which reads as below:
No order or decree for the recovery of possession of any house shall he made or executed by any Court so long as the tenant pays rent to the full extant allowable under this Act and performs the conditions of the tenancy.
Then comes the proviso which bas stated that nothing in this Sub-section shall apply to any suit or proceedings for eviction of the tenant from the house where, inter alia, the tenant has not paid rent lawfully due from him in respect of the house within a fortnight of its falling due.
Relying on the aforesaid provision of law. it is contended by Shri Lahiri that as the tenant had not paid the rent to the full extent allowable under the Act inasmuch as he has been found to be a defaulter, the bar of Section 5(1) did not operate in the present case. In this connection my attention has beta invited to Kali Kumar v. Makhanlal AIR 1969 Assam and Nagaland 66 (FB), wherein for a default of a paltry sum of Rs. 15 the tenant had to vacate the premises.
There is no doubt that if a tenant be a defaulter the protection of what has been stated in the substantive provision of Section 5(1) of the Act would not be available to the tenant. It is also correct that the bar created by Section 5(1) would not operate in the case of a tenant who does not pay rent to the full extent available under the Act. But then to recover possession from a tenant, the same must become illegal allowing the landlord to take recourse to law to recover the illegal possession. There is nothing before me to show that the possession of the Petitioner or for that matter their predecessor-in-interest had become illegal for any reason whatsoever. So, possession could not have been recovered by the landlord in the present ease despite the non-availability of the protection afforded by Section 5(1) of the Act.